United States Court of Appeals,
Fifth Circuit.
No. 94-30681.
EXXON CORP., Plaintiff-Appellant,
v.
BATON ROUGE OIL and Chemical Workers Union, Defendants-Appellees.
March 15, 1996.
Appeal from the United States District Court for the Middle
District of Louisiana.
Before REYNALDO G. GARZA, JOLLY and DUHÉ, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
This appeal requires us to determine whether, as a matter of
national policy, the federal courts must decline to enforce an
arbitrator's award that orders only backpay—not reinstatement—for
an employee who was fired because of drug use, but also fired in
violation of the terms of his collective bargaining agreement. The
case arose from the discharge of Donald Chube by Exxon Corporation
for his violation of the company's policy on alcohol and drug use.
Chube worked as a supervisor in a "safety-sensitive position," and
was discharged after a drug test indicated that he had used
cocaine. After Exxon terminated Chube, the Baton Rouge Oil and
Chemical Workers Union grieved his discharge and won an order for
Chube's reinstatement and back pay. The district court affirmed
the arbitrator's alternative order for reinstatement only. Exxon
appeals. We reverse and render.
I
Exxon operates a chemical plant near Baton Rouge, Louisiana.
1
The production and maintenance employees operate under a collective
bargaining agreement dated March 31, 1988. Chube, who was
ordinarily an operator in the olefins purification department, had
been "stepped up" to a safety-sensitive classification, operations
controller, in which he acted as a temporary supervisor. The
record is unclear as to the permanency of this position, but it is
clear that he was acting as a temporary supervisor at the time that
he was drug-tested.
In 1987 Exxon revised its alcohol and drug use policy. The
new policy authorized unannounced searches for drugs and alcohol on
Exxon property. It also required employees to submit to alcohol
and drug testing "where cause exists to suspect alcohol or drug
use." A positive test result or refusal to submit to a test was
grounds for disciplinary action, including termination. One year
after Exxon revised its policy, the Drug-Free Workplace Act of
1988, 41 U.S.C. § 701-707, was enacted. To clarify its policies
and to comply with the Act, Exxon published a list of "Posted
Offenses," giving notice that an employee who committed one of the
following offenses could be discharged or otherwise disciplined
without notice:
a. Being under the influence of alcohol, in the opinion of a
doctor, Company guard, or supervisor, on Company time or
property.
b. Bringing onto Company property, or possessing or using on
Company time or property, an alcoholic beverage, a
habit-forming drug, or a drug which the Company believes may
impair the employee's ability to perform duties in a safe and
responsible manner.
c. Habitual use of an alcoholic beverage or habit-forming
drug; except where the Company doctor believes that such use
2
is necessary for the employee's health.
In early 1989, Exxon proposed to add random drug tests for a
group of "designated positions" with critical safety
responsibilities. Chube's job as temporary supervisor was one of
these "designated positions." His permanent position as operator
was not covered, however. The Union objected to the policy
changes.1 It expressed concern that the policy did not provide for
employee rehabilitation. The Union also objected that the random
test policy would not give employees ample notice that they would
be subject to testing. Discussions between the Union and Exxon
reached an impasse. Consequently, in August 1989, Exxon
unilaterally issued a Revised Alcohol and Drug Abuse Policy, which
was to be effective September 1, 1989. The policy contained the
following paragraph:
Exxon may conduct unannounced searches for drugs and alcohol
on owned or controlled property. The Company may also require
employees to submit to medical evaluation or alcohol and drug
testing where cause exists to suspect alcohol or drug use.
Unannounced periodic or random testing will be conducted when
an employee meets any one of the following conditions: has
1
The proposed policy change came to the Union's attention in
April 1989, when Exxon published a notice advising its employees
that it would be implementing a new policy, and summarizing the
policy as follows:
[A]n employee who has had or is suspected of having a
substance abuse problem will not be allowed to work in
certain positions. The positions, to be decided by
management, will include critical jobs where operating
problems could result in major risks to employees,
public safety, and facilities. In addition, random
drug and alcohol testing will be conducted when an
employee: (1) has had a substance abuse problem, (2)
returns from rehabilitation, (3) is assigned to certain
positions, or (4) fills a position where testing is
required by law.
3
had a substance abuse problem or is working in a designated
position identified by management, a position where testing is
required by law, or a specified executive position. A
positive test result or refusal to submit to a drug or alcohol
test is grounds for disciplinary action, including
termination.
On August 24—a week before the new policy was to become
effective—Chube, as an employee in a "highly sensitive position,"
was given a drug test, and the test was positive for cocaine use.
On September 13, Exxon discharged Chube "for violating the
Company's Alcohol and Drug Policy," but did not set out the precise
nature of the violation. The Union filed a timely grievance on
Chube's behalf, and when the matter was not resolved through the
grievance process, the Union demanded arbitration. The issue
stipulated for the arbitrator was whether Exxon had violated the
contract when it discharged Chube and, if so, what should be the
remedy.
The Union argued that, under Exxon's policies then in effect,
the drug screen administered to Chube was solely to determine his
eligibility to be assigned to a "designated position"; the test
results could not be used for purposes of discipline because he had
violated no posted rule in effect at the time of the test. Exxon
responded that all employees had been given ample notice that a
positive drug test would result in discharge. Furthermore, its
policy was based on the obvious need to protect lives and property
against possibly devastating accidents.
The arbitrator determined that the critical issue in the case
was, not whether Chube engaged in the use of illegal drugs, but
whether in this instance the presumed use of cocaine gave Exxon the
4
right under the contract to discharge Chube. He concluded that
Exxon violated § 1121 of the contract by discharging Chube. That
section reads as follows:
1121. General
(a) The Company may discipline an employee only for
cause.
(b) The Company has posted a list of offenses which merit
discipline. This list is dated January 3, 1984. Before
the Company may make any change in this list or any
subsequent list, the change must be agreed to by the
Union.
(c) If an employee commits one of the posted offenses, it
is cause for discipline, and the Company may discipline
him without advance notice.
(d) Even though an employee does not commit a posted
offense, his conduct or work performance may still be
cause for discipline. However, the Company may not
discipline him without giving him advance notice, and
where practicable, an opportunity to correct the
situation.
The arbitrator found that, under § 1121(b), Exxon could
discharge Chube "without advance notice" only if Chube committed a
posted offense. He further found that Chube had committed none of
the posted offenses in effect on the date of the tests;
specifically, there was no evidence that he had brought drugs on
company property or possessed or used drugs on company time, or
habitually used a habit-forming drug. The arbitrator noted that
the 1989 drug policy did not become effective until September 1,
1989, and that Chube was tested before that date. Further, and at
the heart of our review today, the arbitrator rejected Exxon's
argument that, notwithstanding whether Exxon breached the
collective bargaining agreement, Chube's discharge was justified
5
based on a strong public policy against the use of drugs.
The arbitrator's award required Exxon to reinstate Chube
without loss of seniority, and pay him back pay and benefits,
"calculated on the basis of [Chube's] permanent classification wage
level." Alternatively—and only because Chube was incarcerated
after his discharge for selling drugs—the arbitrator required Exxon
to pay him one year's back pay in the event that Chube was still
unavailable for reinstatement.2
Exxon then instituted this suit in the United States District
Court for the Middle District of Louisiana, seeking, by motion for
summary judgment, to vacate the arbitration award. The Union filed
a cross motion for summary judgment, seeking enforcement of the
award on the remedy of back pay plus costs, and not on the remedy
of reinstatement. After the district court granted the Union's
motion for summary judgment and enforced the arbitrator's award,
Exxon timely appealed.
II
We review a grant of summary judgment de novo. Calpetco 1981
v. Marshall Exploration, Inc., 989 F.2d 1408, 1412 (5th Cir.1993).
Once a properly supported motion for summary judgment is presented,
the burden shifts to the non-moving party to set forth specific
facts showing that there is a genuine issue for trial. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510-11, 91
L.Ed.2d 202 (1986); Brothers v. Klevenhagen, 28 F.3d 452, 455 (5th
Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 639, 130 L.Ed.2d
2
Chube was in prison on the date for his reinstatement.
6
545 (1994). We review "the facts drawing all inferences most
favorable to the party opposing the motion." Matagorda County v.
Russell Law, 19 F.3d 215, 217 (5th Cir.1994).
Review of an arbitration proceeding is narrowly limited. A
court will not disturb an award if it "draws its essence from the
collective bargaining agreement" and is not based on the
arbitrator's "own brand of industrial justice." United
Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S.
593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). We may not
reconsider an award based on alleged errors of fact or law or
misinterpretation of the contract. United Paperworkers Int'l Union
v. Misco, Inc., 484 U.S. 29, 36, 108 S.Ct. 364, 369-70, 98 L.Ed.2d
286 (1987). However, we may scrutinize the award to ensure that
the arbitrator complied with the jurisdictional prerequisites of
the collective bargaining agreement. E.I. DuPont de Nemours and
Co. v. Local 900 of Int'l Chemical Workers Union, 968 F.2d 456 (5th
Cir.1992) (internal quotations and citations omitted). The
district court may vacate an arbitrator's award if the arbitrator
exceeded its arbitral authority provided for in the agreement. Id.
Notwithstanding our normally narrow review of an arbitrator's
award, if that award is contrary to public policy, the award cannot
be enforced. A federal court may vacate the award if it is
"clearly shown" that the award violates "well-defined and dominant"
policy drawn from existing laws and legal precedent. W.R. Grace
and Co. v. International Union of Rubber Workers, 461 U.S. 757,
766, 103 S.Ct. 2177, 2183-84, 76 L.Ed.2d 298 (1983); Misco, 484
7
U.S. at 43-45, 108 S.Ct. at 374-75. It is on public policy
grounds, as reflected in our opinion in Gulf Coast Indus. Workers
Union v. Exxon Corporation, 991 F.2d 244, 248-55 (5th Cir.), cert.
denied, --- U.S. ----, 114 S.Ct. 441, 126 L.Ed.2d 375 (1993), that
we scrutinize the arbitrator's award in this case.
III
In this respect, Exxon argues that the arbitrator's award
violates public policy because it orders reinstatement of "a
cocaine user and convicted drug dealer to a highly safety-sensitive
job."3 Exxon contends that well-defined public policy, articulated
by this court in Gulf Coast Indus. Workers, prohibits the return of
drug users to jobs that pose a threat to the safety of other
workers and/or the general public. It argues that allowing the
arbitration award to stand, whether it involves reinstatement or
merely payment of back pay, undermines the public policy against
the use, possession, or positive testing for alcohol or drugs in
the workplace.
The Union effectively counters that the order of reinstatement
is moot; it only seeks enforcement of the arbitrator's alternative
award limited to back pay. The Union admits that a public policy
against drug use in safety sensitive positions exists; it
3
Exxon also argued in its brief that the award did not "draw
its essence from the contract" because it conflicted with three
previous arbitration awards interpreting Exxon's alcohol and drug
use policy and the Contract. Exxon contends that the arbitrator
exceeded his authority under that section of the Contract that
provided that the arbitrator must give prior awards res judicata
effect. Because we find in Exxon's favor relative to its first
argument, we need not reach the second.
8
contends, however, that that public policy is not at issue in this
case because of the impossibility of reinstating Chube to his prior
position. Generally adopting this view of the case, the district
court observed that the arbitrator would have erred if it had
actually required Exxon to reinstate Chube, but agreed with the
Union that Chube was not available for reinstatement, and that that
portion of the award was therefore immaterial to the appeal.
IV
We begin our public policy analysis with an examination of
W.R. Grace, in which the Supreme Court clearly articulated the
public policy standard. In that case an employer signed a
conciliation agreement with the Equal Employment Opportunity
Commission ("EEOC"). The agreement conflicted with the collective
bargaining agreement because it rescinded certain provisions of the
bargained-for seniority system to allow advancement of some
minorities, which prompted adversely affected employees to file
grievances. Ultimately, the Supreme Court was called upon to
determine whether the collective bargaining agreement was
unenforceable as violative of public policy. The court began by
observing that a collective bargaining agreement is a contract,
and, "as with any contract, a court may not enforce a collective
bargaining agreement that is contrary to public policy." W.R.
Grace, 461 U.S. at 766, 103 S.Ct. at 2183. The Court stated:
If the contract as interpreted by [the arbitrator] violates
some explicit public policy, we are obliged to refrain from
enforcing it. Such a public policy, however, must be well
defined and dominant, and is to be ascertained "by reference
to the laws and legal precedents and not from general
considerations of supposed public interests."
9
Id. (citations omitted). The Court concluded that the company's
voluntary commitment to two conflicting contractual obligations was
a dilemma of its own making, and that enforcement of the collective
bargaining agreement in the employees' favor violated no explicit
public policy.
Four years later, in Misco, a paper plant employee was
discharged after police apprehended him in a co-worker's car that
was filled with marihuana smoke. The company asserted that the
employee's action violated its rule against having an illegal
substance on company property. The arbitrator upheld the union's
grievance and ordered the employee reinstated, and the company
filed suit to have the award vacated. The district court set aside
the award on public policy grounds. A panel of this circuit
affirmed, articulating the policy as "one against the operation of
dangerous machinery by persons under the influence of drugs or
alcohol." Misco Inc. v. United Paperworkers International Union,
AFL-CIO, 768 F.2d 739, 743 (5th Cir.1985).
The Supreme Court reversed, holding that we had not followed
W.R. Grace 's command to identify with specificity the existing
laws and legal precedents underlying our public policy decision.
The Court reiterated its holding from W.R. Grace that allowing
public policy to bar the enforcement of an arbitrator's award is
little more than "a specific application of the more general
doctrine, rooted in the common law, that a court may refuse to
enforce contracts that violate law or public policy." Misco, 484
U.S. at 42, 108 S.Ct. at 373. As we observed in Gulf Coast,
10
The Supreme Court re-emphasized in Misco that, when applying
the narrow public policy exception, courts are forbidden to
use imprecise notions of public policy which would allow
ill-defined considerations to negate the rule favoring
judicial deference. "At the very least," wrote Justice White,
"an alleged public policy must be properly framed under the
approach set out in W.R. Grace, and the violation of such a
policy must be clearly shown if an award is not to be
enforced." 484 U.S. at 43, 108 S.Ct. at 373.
Gulf Coast Indus. Workers Union, 991 F.2d at 249.
In Gulf Coast, our definitive post-Misco case, we again
applied the public policy exception to bar enforcement of an
otherwise valid arbitrator's award. Exxon discharged an employee
for violating its Alcohol and Drug Use Policy and for breaching an
employee after-care agreement. The Union filed a grievance
contesting the termination, and the arbitrator held that summary
discharge was unjustified and too harsh a penalty for the
employee's violations. The arbitrator directed Exxon to reinstate
Woods to his previous job without backpay, contingent upon a
negative drug and alcohol screen. After the Union instituted suit
to enforce the award, the district court granted Exxon's
cross-motion for summary judgment, and vacated the arbitration
award.
On appeal, we reviewed applicable law, including W.R. Grace
and Misco. We recognized that the district court had not
"ground[ed] its decision upon an articulated review of laws and
legal precedents that frown upon the reinstatement of such
employees." Gulf Coast, 991 F.2d at 250. We noted that the
district court had applied a "common sense public policy approach,"
and explained that we may not "use imprecise notions of public
11
policy which would allow ill-defined considerations to negate the
rule favoring judicial deference." Id. at 249. We nevertheless
affirmed vacating the arbitrator's award, holding "that it offends
public policy for Woods, an employee who occupies a
safety-sensitive position, to retain his job upon testing positive
for cocaine while on the job and after having breached his
company's drug abuse policy on two occasions—first when he broke
his pledge of abstinence, and second when he failed to disclose his
relapse." Id. We supported our holding by noting that "[t]here
are countless statutes, regulations, company guidelines, and
judicial decisions that pronounce the emphatic national desire to
eradicate illicit drugs from the workplace." Id.
Since Misco, the Supreme Court has recognized a public policy
against drug use in the workplace (in a slightly different
context), stating that the government has a strong interest in
preventing employees "from using alcohol or drugs while on duty" to
ensure the safety of the public and the employees. Skinner v.
Railway Labor Executives Ass'n, 489 U.S. 602, 621, 109 S.Ct. 1402,
1415, 103 L.Ed.2d 639 (1989) (holding, in context of challenge to
Federal Railroad Administration drug and alcohol testing rules,
that such tests were reasonable under the Fourth Amendment even
though there was no requirement of warrant or reasonable suspicion,
because of compelling government interest).
V
Thus, we come to the question of whether, notwithstanding
Exxon's clear breach of the collective bargaining agreement, we
12
will deny enforcement of the arbitrator's award under the
circumstances of this case. The Union makes a forceful argument
that the case at bar must be distinguished from Gulf Coast, because
the Union seeks only to enforce an award of back pay to Chube—an
award that cannot be said to contain the element of endangerment
that underlay our decision in Gulf Coast. In this case, the
arbitrator heeded the admonition in our caselaw that such an order
would violate public policy, and consequently crafted its order so
that Chube would not be placed back into a safety-sensitive
position. This distinction, the Union argues, in combination with
Misco 's requirement of a hands-off approach to a review of an
arbitrator's award, is sufficient to warrant affirmation of the
arbitrator's award.
After thorough consideration of this argument, we cannot
agree. It is undisputed that Chube occupied a safety-sensitive
position. It is also undisputed that Chube tested positive for
cocaine use while occupying that position, and thereby endangered
the safety of other employees. We think that the public policy
exception articulated in Gulf Coast must be read not only to
prohibit the prospective placement of an employee into a position
where he is a danger to his company and to fellow employees (i.e.,
order of reinstatement into a safety-sensitive position), but also
to prohibit a retrospective approval of the conduct that created
the unsafe situation in the first place (i.e., order of back pay or
reinstatement into the job the employee held before promotion to a
safety-sensitive position). In addition to addressing future
13
conduct, the public policy against drug use in safety-sensitive
positions also must look back to the conduct that is the subject of
the grievance. The policy looks to the future to ensure safety,
but looks back to deny condonation of misconduct.
We think that the public policy against drug use in safety
sensitive positions that we enunciated in Gulf Coast would be
weakened by the arbitrator's order in this case. It suggests to
the drug user in a safety-sensitive position that the maximum
penalty that he might incur would either be reinstatement to his
position prior to assuming the safety-sensitive duties, or, if
reinstatement were impossible, back pay at the rate of his former
position. Such a suggestion is consistent neither with the public
policy we articulated in Gulf Coast, nor the statutes, regulations,
and case law we cited in support of that public policy. In Gulf
Coast, we highlighted the various legal sources reflecting our
nation's "well defined and dominant" desire for a drug-free
society. We cited federal statutes,4 state statutes,5 and various
regulations. We also relied on previous case law that condemned
4
Federal authority included the 1988 Drug-Free Workplace
Act, 41 U.S.C. §§ 701-707, Defense Department regulations
mandating a drug-free workplace (48 C.F.R. 223.5 (1992)), and the
Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213, which
affirmatively excludes from protection persons who are using
drugs. The defendant in the Gulf Coast case, as in the case at
bar, was Exxon. Obviously, the same statutes continue to apply
to Exxon.
5
We note that the State of Louisiana has adopted drug
testing procedures and standards to be used by Louisiana
businesses, further evidencing the clear public policy against
drug use in that state. See La.Rev.Stat. Ann. §§ 49:1001-1015
(West Supp.1995).
14
the presence of drugs in the workplace,6 and that noted the dangers
associated with petro-chemical refineries.7 In reviewing the legal
sources we identified in Gulf Coast, we entertain no doubts that
each of these bases is equally relevant to the case before us
today.
VI
We recognize that, under Misco, it is the rare case where
public policy trumps the terms of a bargained-for agreement between
a union and a corporation.8 We conclude, however, that the
arbitrator's award and remedy under the facts of this case—ordering
reinstatement of or monetary award to an employee who, while
working in a safety-sensitive position, tested positive for the use
of drugs—violate well-established public policy against the use of
drugs by employees in safety-sensitive positions. We therefore
REVERSE the arbitrator's award in favor of Donald Chube, and RENDER
6
See, e.g., Oil Workers Loc. 4-228 v. Union Oil Co. of Cal.,
818 F.2d 437, 442 (5th Cir.1987) (recognizing this Circuit's
strong public policy against operation of dangerous machinery by
persons using drugs or alcohol).
7
See, e.g., Union Oil, 818 F.2d at 439, 441 n. 3 (affirming
arbitrator's emphasis on "the danger inherent in the oil refinery
work environment" where "fires and explosions often occur ...
with calamitous and costly results").
8
We are not unmindful of certain inequities, as between the
company and the Union, that arise here: the Union has incurred
significant expense in defending its contractual position—a
position that has been upheld. The company, on the other hand,
who has been held to have breached the contract, receives the
benefit of incurring no monetary liability. We apply the public
policy exception here only because we are absolutely convinced
that public policy, as reflected in the body of this opinion,
does not permit the grievant in this case to receive any monetary
award.
15
judgment in favor of Exxon Corporation.
REVERSED and RENDERED.
16